Thursday, April 5, 2012

First Abolition, Then Commutation

The death penalty in Connecticut, after several previous attempts, was abolished today by the Senate in a 20-16 vote. The House is certain to pass the abolition bill, and Governor Dannel Malloy has pledged to sign it into law. Senator Edith Prague, who voted in favor of abolition before she voted against it, this time voted to abolish the death penalty prospectively. A prospective rather than a retrospective abolition of the death penalty, it is said by proponents of abolition, will leave untouched the death sentences of eleven inmates awaiting execution on death row,.

After an emotional meeting with Dr. William Petit, the sole survivor of a home invasion Cheshire in which two now convicted murderers took the lives of his wife and two daughters, Mrs. Prague famously said of one of the two murderers convicted and sentenced to death, “They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street.”

But emotional responses, little more than convenient masks politicians sometimes put on to curry favor with voters, are evanescent. When the most recent bill abolishing the death penalty was presented to the general assembly, Mrs. Prague changed both her emotions and her vote.

The abolition of the death penalty raises the question of commutation for those awaiting punishment on death row. Unlike other states, commutations in Connecticut are parceled out by the legislature, not the governor. But it is always possible that an appellate court may strike down that provision in the abolition bill that preserves the death penalty for the 11 convicted murderers on Connecticut’s death row.

The possibility of commutation for the "Connecticut 11" was raised by Senator John McKinney prior to the vote in the General Assembly. Senator Prague allowed that discretion was decisive in judicial findings; for this reason, she said, it was essential that the abolition legislation must “make it very loud and very clear that this repeal cannot apply to anyone who is on death row.”

Mr. McKinney responded that even in the face of unambiguous language in the bill stipulating the abolition law is not intended to apply to inmates already sentenced to death, the courts would view the intent of congress clause as immaterial: “That’s a decision that will be decided in the courts. No one disputes that there will be a legal challenge brought by the public defender’s office and the weight of the legal experts is to say that a prospective death penalty won’t pass constitutional muster.”

The air in the small room, crowded with reporters during a media availability just prior to the Senate vote, was liberally sprinkled with the usual Democratic caucus propaganda. Reporters were addressed by the three vanguards of death penalty repeal – President of the Senate Don Williams, Senate Majority Leader Martin Looney, Senator Eric Coleman, co-chairman of the Judiciary Committee, all three of them lawyers, and Correction Commissioner Leo Arnone. The irrepressible Mr. Coleman could not forbear mentioning that abolition was for him a matter of conscience, “even should it [the death penalty] be repealed prospectively,” leaving eleven prisoners facing death in the absence of a law mandating execution. The three were peppered with questions concerning the likelihood that appellate courts might void that portion of the bill that seeks to prevent abolition for the inmates facing execution.

Dr. Samuel Johnson, were he a member of the General Assembly, easily could explain why the abolition bill cherished by Democratic caucus leaders should have been applied retroactively.

Nulla poena sine lege– “Where there is no law, there is no transgression” – is a part of the Natural Law that informs all laws. When Mr. Johnson was reporting on debates in the House of Commons, he offered this gloss on the doctrine: “That where there is no law there is no transgression, is a maxim not only established by universal consent, but in itself evident and undeniable; and it is, Sir, surely no less certain that where there is no transgression, there can be no punishment.”

Any sound legal defense of prospective capital punishment collapsed upon repeal of the death penalty sanction: Where there is no law, there can be no transgression; where there is no transgression, there can be no punishment. That is the rule of law not simply in Connecticut; it is a part of the natural law written with a finger of fire in the hearts of just men, not excepting judges, though some are prone to political pressure adeptly applied by ambitious politicians.

Death penalty opponents have been in the habit of referring falsely to a just death penalty as “judicial murder.” Having voided the death penalty, what possible moral reason can be advanced to justify what should rightly be regarded as murder, plain and simple? No possible justification can be advanced that does not do violence both to the law and the moral sense of just men and women. The death penalty abolition bill as proposed – with its prospective feature – is political Babbitry of the worst kind, a fainthearted retreat from legislative responsibility. The Democratic General Assembly, having messed its pants with this ill proposed bill, will now expect the courts to wash its diapers and apply through judicial edict the retroactive feature it was too politically cowardly to attach to it.